The Human Rights Committee, established under
article 28 of the International Covenant on Civil and Political Rights,

Meeting on 31 October 2006,

Having concluded its consideration of communication No. 1181/2003, submitted
to the Human Rights Committee on behalf of Mr. Francisco Amador Amador and
Mr. Ramón Amador Amador under the Optional Protocol to the International
Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by
the authors of the communication and the State party,

Adopts the following:

VIEWS UNDER ARTICLE 5, PARAGRAPH 4, OF THE OPTIONAL PROTOCOL

1. The authors of the communication, which is dated 20 September 2002, are
Francisco Amador Amador and Ramón Amador Amador, Spanish nationals who claim
to be the victims of a violation by Spain of article 14, paragraph 5, of the
International Covenant on Civil and Political Rights. The authors are
represented by Mr. Emilio Ginés Santidrián. The Optional Protocol entered
into force in Spain on 25 April 1985.

FACTUAL BACKGROUND

2.1 In a judgement dated 12 December 2000, the Almería Provincial Court
found the authors guilty of an offence against public health (drug
trafficking), with the aggravating circumstance of recidivism, and sentenced
them both to 10 years' imprisonment and a fine of 20 million pesetas (about
ˆ120,200), with an additional penalty of disqualification from public
service or office for the duration of the sentence.

2.2 The authors submitted an appeal in cassation to the Supreme Court,
alleging: (a) a violation of the right to be presumed innocent, on the
grounds of the inadequacy of the evidence presented in the trial court; (b)
a violation of the right to due process, on the grounds that the search of
the house where the drugs were found had been overseen by an official of the
investigating court and not the court registrar; and (c) a violation of the
right to be presumed innocent, on the grounds of the refusal to admit expert
evidence submitted by the defence.

2.3 The Supreme Court considered these grounds for cassation in a judgement
dated 2 January 2002. It found that the use of a court official rather than
the court registrar in the above-mentioned search procedure was not unlawful,
since the possibility of replacing the registrar with a competent official
was provided for by law. It also rejected the authors' claim that their
right to be presumed innocent had been violated as a result of the
inadequacy of the evidence presented. It pointed out that the trial court
had based the authors' conviction on an incriminating statement made by
another person implicated in the case, on the authors' presence in the house
where the cocaine was being kept, and on the fact that they emerged from
that house with other defendants when the police arrived. The Supreme Court
concluded that the evidence for the prosecution had been lawfully obtained,
presented in oral proceedings in accordance with due process, and
objectively evaluated by the trial court; the latter had, moreover,
explained the reasons underlying its conclusion, and had thus respected the
defendants' right to be presumed innocent. However, the Court did partially
accept the third allegation that the refusal to hear expert evidence on the
exact quantity of trafficked cocaine had constituted a violation of the
authors' right to be presumed innocent. The Court found that, given the lack
of clarity on the exact quantity of trafficked drugs as a result of
discrepancies in the pretrial proceedings, evidence submitted by the authors
should have been examined in order to determine the quantity involved. The
Supreme Court therefore allowed part of the appeal and reduced the sentence
to seven years' imprisonment; it also withdrew the fine, but upheld the
remaining elements of the contested sentence.

2.4 The authors submitted an application for amparo to the Constitutional
Court, claiming a violation of the right to be presumed innocent, on the
grounds that the house search had been invalid and that there was no
evidence that the trafficked substance was a narcotic. The application was
rejected on 1 July 2002 as manifestly devoid of substance with regard to the
Constitution. The Constitutional Court held that, as a warrant had been
granted, the manner in which the search had been conducted was within the
bounds of legality. Concerning the second ground for the application, the
Court deemed that the seizure of the substance, the expert evidence and
witnesses' testimony were sufficient to constitute incriminating evidence
regarding the nature of the substance.

THE COMPLAINT

3.1 The authors claim a violation of article 14, paragraph 5, of the
Covenant, arguing that the Spanish judicial system provides no effective
right of appeal in cases involving serious offences, since provincial court
judgements are subject to an appeal in cassation before the Supreme Court on
very limited legal grounds only. Such appeals allow no reappraisal of the
evidence, as all factual determinations by the lower court are final. In any
complaint to the Supreme Court regarding an error of fact in the weighing of
the evidence, the Supreme Court refers back to the lower court's appraisal
of that evidence, which demonstrates the inadequacy of the Spanish legal
process. The Supreme Court does not have the status of an appeal court and
is consequently barred from re-examining the evidence; as it has no direct
access to the evidence, it cannot determine what conclusions should be drawn
therefrom.

3.2 When an appeal is lodged with the Supreme Court against an error of fact
in the appraisal of the evidence, the Supreme Court refers back to the trial
court's appraisal of the evidence, whereas an appeal court would be required
to invoke the safeguards contained in the Covenant; this reveals the
inadequacy of the Spanish legal process and, thus, a violation of the
authors' rights.

3.3 The authors refer to the Committee's established jurisprudence to the
effect that article 14, paragraph 5, of the Covenant requires a full
appraisal of the evidence and the conduct of the trial. They argue that the
real thrust of article 14, paragraph 5, is the principle of a full second
hearing for the convicted person, not as a means of rectifying errors made
during the first hearing, but as a realization of the right of the accused
to be sentenced on the basis of a double finding - first by the trial judge
and then by a collegiate appeal court.

3.4 The authors cite a decision by the Criminal Division of the Supreme
Court, dated 25 July 2002, which states that, on the basis of Human Rights
Committee decisions, the Supreme Court has extended the concept of points of
law affording grounds for an appeal in cassation beyond the traditional
limits. At the same time, its case law has reduced the points of fact
excluded by the remedy, so that it now excludes only those that would
require resubmission of the evidence in order to permit its re-evaluation.

STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY

4.1 In its observations of 4 August 2003, the State party maintains that the
communication should be declared inadmissible on the grounds that domestic
remedies have not been exhausted or, failing that, on the grounds that it is
totally without merit. The authors confine their complaint to the
proposition that an appeal in cassation does not meet the requirements of
article 14, paragraph 5, of the Covenant. Yet the ruling handed down
following just such an appeal found partly for the authors and corrected, in
their favour, facts that had been declared proven in the lower court's
judgement. It appears from the Constitutional Court ruling that the authors
at no time claimed a violation of the right to a review of the conviction
and sentence handed down by the lower court, or of article 14, paragraph 5,
of the Covenant.

4.2 Furthermore, it is clear from the Supreme Court's ruling that it
conducted a thorough re-examination of the facts and evidence in the course
of the appeal in cassation, and that the resulting reassessment of the facts
deemed to have been proven was in the authors' favour. Under the
circumstances, it is paradoxical to claim that a re-examination of the facts
is limited under an appeal in cassation, when the ruling resulting from such
an appeal shows that the facts were very thoroughly re-examined. The State
party therefore concludes that the Committee should dismiss the
communication as without merit.

AUTHORS' COMMENTS

5.1 In their comments of 22 January 2004, the authors contend that the
remedy of amparo in Spain is restricted in terms of the grounds on which an
application may be based. These do not include the right to a second hearing,
because such a right is not provided for in Spanish legislation on criminal
cases falling under the jurisdiction of the provincial courts or the High
Court. It is thus not possible to invoke article 14, paragraph 5, of the
Covenant as the basis for either an appeal in cassation or an application
for amparo. However, as in other cases that have come before the Committee,
the Supreme Court judges who heard the appeal in cassation submitted by the
authors have themselves noted that Spain's cassation procedure suffers from
a number of shortcomings. The State party has on several occasions given the
Committee assurances that it would carry out the necessary legislative
reforms to introduce a second hearing in all criminal proceedings and reform
the procedure for appeals in cassation to the Supreme Court in criminal
cases. To date no such legislative reform has been carried out.

5.2 The authors argue that the principle of the presumption of innocence
remained fully applicable following the trial in the lower court, which
failed to consider evidence such as quantitative or qualitative analyses of
the impounded substance. This was one of the reasons why the Supreme Court
was obliged, in its wisdom, to quash part of the sentence. Since it could
not hold the trial again, the authors had to be satisfied with a reduction
of their sentence. The logical procedure would have been for the authors to
be given a second trial in which the evidence of their innocence was
examined.

COMMITTEE'S DECISION ON ADMISSIBILITY

6.1 On 4 July 2005, during its eighty-fourth session, the Committee
considered the admissibility of the communication.

6.2 With respect to the State party's contention that domestic remedies had
not been exhausted because the authors had not invoked a violation of their
right to a review of the conviction and sentence during the amparo
proceedings, the Committee observed, on the basis of the case before it and
its previous decisions, that amparo was not an adequate mechanism for
dealing with allegations regarding the right to a second hearing under the
Spanish criminal justice system. It therefore concluded that domestic
remedies had been exhausted.

6.3 The Committee concluded that the authors' complaint raised significant
issues with respect to article 14, paragraph 5, of the Covenant and that
those issues should be considered on the merits.

STATE PARTY'S OBSERVATIONS ON THE MERITS

7.1 In its observations of 25 January 2006, the State party recalls that the
Committee, in its decisions on earlier communications relating to article
14, paragraph 5, of the Covenant, considered the compatibility of each
individual case with the Covenant without conducting a theoretical review of
the Spanish legal system. It cites the Committee's decisions in
communications Nos. 1356/2005 (Parra Corral v. Spain), 1059/2002 (Carvallo
Villar v. Spain), 1389/2005 (Bertelli Gálvez v. Spain) and 1399/2005 (Cuartero
Casado v. Spain), in which the Committee determined that the remedy of
cassation in criminal cases met the requirements of the Covenant, and
declared those communications inadmissible. It also cites a judgement of the
Constitutional Court of 3 April 2002 (STC 70/02) in which the Court declares
that there is a "functional similarity between the remedy of cassation and
the right to the review of a conviction and sentence, as set out in article
14, paragraph 5, of the Covenant, provided that the concept of review by the
court of cassation is interpreted broadly ... It is incorrect to state that
our system of cassation is restricted to an analysis of legal and formal
issues and that it does not allow for a review of the evidence ... Currently,
under article 852 [of the Criminal Procedure Act], the remedy of cassation
may be invoked for any violation of a constitutional precept. And, under
article 24, paragraph 2 [of the Constitution] (trial with due process and
presumption of innocence), the Supreme Court may review the legitimacy of
the evidence on which the judgement is based and determine whether it is
sufficient to outweigh the presumption of innocence and the reasonableness
of the conclusions drawn. Therefore, [the applicant] does have a mechanism
for a full review, in the sense that it is possible to reconsider not only
the points of law but also the facts on which the finding of guilt is based,
by reviewing the application of procedural rules and the evaluation of the
evidence".

7.2 The State party notes that, in the case under consideration, the
decision in cassation demonstrates that the sentence handed down by the
trial court was very thoroughly reviewed, in that elements related to the
presumption of innocence - namely, the evidence for the prosecution and an
error in the appraisal of the evidence - were considered. Both these
elements are suitable starting points for a review of the facts. In this
case, moreover, the outcome of the review of the facts deemed to have been
proven in the lower court was in the authors' favour, and it is therefore
paradoxical, in the view of the State party, that they should be arguing
that no review of the sentence and verdict was possible.
Authors' comments

8.1 On 3 March 2006, the authors submitted their observations on the merits.
They point out that since the Committee issued its Views stating that the
right to a second hearing was violated in the Spanish cassation procedure,
more than 10 top legal authors have published studies supporting the
Committee's position.

8.2 They add that a report on Spain by the Commissioner for Human Rights of
the Council of Europe emphasized the Spanish Government's failure to comply
with the Committee's Views on the right to a second hearing in the Spanish
cassation procedure and invited the State party to comply with the
Committee's demands in this area.

ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE

9.1 The Human Rights Committee has considered the present communication in
the light of all the information made available by the parties, as required
by article 5, paragraph 1, of the Optional Protocol.

9.2 The Committee takes due note of the State party's contention that, in
this case, the cassation proceedings included a full review of the facts and
the evidence. Indeed, the Supreme Court thoroughly and objectively reviewed
each of the grounds for the appeal, which were primarily based on an
appraisal of the evidence examined by the trial court, and it was rightly on
the basis of this reappraisal that the Court concluded that the refusal to
hear expert testimony that would have established the precise quantity of
trafficked cocaine was a violation of the authors' right to be presumed
innocent. This was why the Court allowed part of the appeal in cassation and
reduced the sentence imposed by the trial court. In the light of the
circumstances of the case, the Committee concludes that there has been a
genuine review of the conviction and sentence handed down by the trial
court.

10. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it do not reveal any violation
of article 14, paragraph 5, of the Covenant.

[Adopted in English, French and Spanish, the Spanish text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]